On April 6, 2023, the U.S. Deptartment of Education released a new Notice of Proposed Rulemaking (“NPRM”) on Title IX. This NPRM focuses on the application of Title IX to gender in student sports.
The current Title IX rule (last amended in 2020 under the Trump Administration) does not expressly address the criteria a school should use to determine eligibility to participate on a male or female athletic team. This NPRM proposes to change that and “would establish that policies violate Title IX when they categorically ban transgender students from participating on sports teams consistent with their gender identity.” However, in the NPRM, the Department states that it recognizes that in some instances, “particularly in competitive high school and college athletic environments, some schools may adopt policies that limit transgender students’ participation.” Through the proposed rule, the Department is attempting to provide schools with a “framework for developing eligibility criteria to protect students from being denied equal athletic opportunity, while giving schools the flexibility to develop their own participation policies.”
Under the proposed framework, a one-size-fits-all policy banning transgender students from participating in athletics consistent with their gender identity is prohibited. The proposed regulation would be in the Title IX regulations at section 106.41(b)(2):
“If a recipient adopts or applies sex-related criteria that would limit or deny a student’s eligibility to participate on a male or female team consistent with their gender identity, such criteria must, for each sport, level of competition, and grade or education level: (i) be substantially related to the achievement of an important educational objective, and (ii) minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.”
This NPRM will be open for public comment for 30 days from publication in the Federal Register and we expect comments to be strongly divided. Once the comment period closes, the Department will review the comments received and will either proceed with the rule as proposed, issue a new modified proposal or withdraw the proposal.